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Freedom's Edge

In San Francisco, two militant advocates for AIDS
patients have been charged with stalking and threatening public-health officials,
researchers, and reporters who have made or disseminated what they deem to be
objectionable statements about AIDS prevention and the behavior of infected gay
men. Naturally, with no apparent sense of irony, they assert a First Amendment
defense.

The suspects, David Pasquarelli and Michael Petrelis, have been held
for over a month, each on $500,000 bail. They admit that they made or encouraged
"foul" late-night phone calls to the homes of officials who work at the federal
Centers for Disease Control in Atlanta and others they consider the "enemies of
gay people." (The phone calls began in November, after San Francisco initiated a
syphilis-awareness campaign inspired by an increase in the disease among gay and
bisexual men.) But Pasquarelli and Petrelis deny making the threats of violence
that their targets report receiving.

"They told me they were going to hunt me down, that I was in their sights,"
Carl T. Hall, a science writer for the San Francisco Chronicle, alleges. Dr.
Jeffrey Klausner, otherwise known on the Net as Dr. K-K-K-Klausner because of his
references to quarantining sexually active infected gay men, claims that he and
his family received threatening, obscene calls at home.

Of course, Petrelis and Pasquarelli have an obvious right to offend, unsettle,
or denounce their ideological opponents--and a concomitant obligation to tolerate
being offended, unsettled, or denounced. But they have no right to target people
purposefully with plausible threats of violence, which hardly advance or
encourage public debate. Their prosecution does not present a difficult legal
issue so much as a controlling question of fact: Did they or did they not
intentionally threaten people?

The Ninth Circuit Court of Appeals, which could eventually hear this case if
it winds up in federal court, has been grappling with a very similar one for the
past two years. In Planned Parenthood v. American Coalition of Life Activists,
the Ninth Circuit overturned a verdict by a federal jury that hit the ACLA, a
group of anti-abortion extremists, with a $100-million damage award for
threatening abortion providers. In addition to circulating wanted posters that
featured doctors who performed abortions, the appellants had contributed
information about doctors and clinic workers to the notorious Nuremberg Files
site on the Internet. That site maintained a hit list of more than 200 abortion
providers, together with photographs and dossiers listing personal identifying
information, such as full names, addresses, license plate numbers, and details
about the subjects' spouses and children. After three doctors on the list were
slain, a line was put through their names; the names of the wounded were listed
in gray.

In overturning this verdict, Judge Alex Kozinski likened the alleged threats
against abortion providers to the protected rhetoric of civil-rights activists
that was at issue in a landmark 1982 Supreme Court case, NAACP v. Claiborne
Hardware. It involved a boycott against white-owned businesses in Mississippi;
one organizer, Charles Evers, was said to have threatened retaliation against
people who broke the boycott: "If we catch any of you going in any of them racist
stores, we're gonna break your damn neck," he exclaimed. But the Court held that
these remarks were protected speech--because Evers had not "directly threatened
acts of violence." (He was making a speech to a crowd, not stalking or otherwise
targeting particular individuals.) Evers was guilty of rhetorical excesses, not
the issuance of intentional, plausible threats. The Court also stressed that he
could not be held to have intentionally incited violence.

Claiborne Hardware was rightly decided, but it is the wrong precedent for the
Nuremberg Files case. Abortion activists were not sued for inciting violence but
for threatening it--against targeted individuals. And context is essential in
determining whether or not a rhetorical flourish is an actual threat.
Anti-abortion activists issued wanted posters and hit lists during a wave of
homicidal violence against clinics and clinic workers. The threats were quite
plausible (people had been killed), the FBI was offering protection to targeted
doctors, and one defendant, Andrew Burnett, even admitted that the threats were
real: "If I was an abortionist, I would be afraid," he testified.

The ninth circuit's reversal of this verdict inspired a
predictable outburst of protests among pro-choicers (and debates among
free-speech advocates). The full court reheard the case last month, and the
timing was not propitious for anti-abortion extremists. Fear of terrorism is much
stronger these days than respect for speech. The verdict against the ACLA ought
to be restored--not in reaction to September 11, and not to stop violence against
abortion providers, but to punish and perhaps deter deliberate efforts to
terrorize people.

If the Ninth Circuit does hold the ACLA liable for issuing actual
threats, it will not be starting down the slippery slope of censorship.
Reinstating the verdict against the ACLA won't deter offensive or unpopular
political speech, endanger war movies and video games that glorify violence, or
restrict other controversial media. The usual debates about the causal
connection between disputed speech and harmful behavior are irrelevant here.
Neither the Nuremberg Files case nor the prosecution of AIDS activists in San
Francisco is based on claims that speech causes violence. The defendants in both
cases are charged not with causing physical harm to people but with intentionally
instilling fear in them. For freedom's sake, we all have to tolerate being
vilified, embarrassed, or harassed, but freedom will survive if we acknowledge a
right not to be terrorized.

About the Author

Wendy Kaminer is a former senior correspondent for The American Prospect and a contributing editor at The Atlantic Monthly. She also serves on the national board of the American Civil Liberties Union.

A lawyer, social critic, and former Guggenheim Fellow, she writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. Other books she has written include Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It's All the Rage: Crime and Culture; I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Kaminer's articles and reviews have appeared in many other publications, including The New York Times, The Wall Street Journal, The Nation, and Newsweek, and her commentaries have aired on National Public Radio.

Before embarking on her writing career, Kaminer practiced law as a staff attorney in the New York Legal Aid Society and the New York City Mayor's Office.